Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08069/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 20 October 2016
On 16 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

k c
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Siddique, a solicitor
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. The appellant is a citizen of the Gambia. She came to the UK on 15 May 2009 as a dependent spouse of her husband [SB]. Mr [B] is also a citizen of Gambia. At the time her husband was undertaking a course of study. He returned to Gambia in July 2012 and resides in the Bakau area of the country.
2. The appellant was born on 20 March 1987 and is from the Busumbala Village. She is a Mandinka. She is the only daughter of her mother and father but has a stepmother and two half-sisters from a further relationship. Her family continue to live in Busumbala. At the age of 6 she was forced to undergo FGM and because of her own experience became opposed to that immoral practise. But there is a history of FGM in the family with her grandmother practising that procedure and her family strongly supporting it. She finds those practices distressing.

3. The appellant claimed that if she returned to her village her family would insist that she perform the procedure on others. She would be forced to take up her position and her family would abandon her if she refused to do it. They would even threaten to kill her.

Immigration History

4. The appellant applied for asylum but the respondent decided to refuse to vary her leave to enter or remain in the UK and make removal directions under paragraph 336 of HC 395 on 25 September 2014. The appellant appealed that decision to the First-tier Tribunal (FTT). The appeal came before First-tier Tribunal Judges Kelly and Heap. Miss Kaddy was granted anonymity. First-tier Tribunal Judge Heap ("the Immigration Judge") found that the appellant had given a credible account of her family history in Busumbala and she genuinely feared that she would be a person required to perform FGM. He concluded that the appellant's account of having undergone that procedure herself was truthful, that her mother was an FGM practitioner, that such practices were widespread in the country and that the appellant would probably have to take up that role if she returned to Gambia. There is a real risk of her return to Gambia coming to the attention of the family members as Gambia is a "small" country where "news travels quickly". Given the prevalence of FGM amongst Mandinka ethnic groups, which make up about 42% of the population, it was the FTT concluded that the appellant "cannot reasonably be expected to internally relocate". If she went to live with her husband in Bakau, a predominantly Mandinka area, she would quickly expect to be recognised and word would be sent back to her family who would come to get her. At paragraph 53 of the decision, Judge Heap considered the possibility of protection from the police/security services. He accepted the appellant's case that she could not do so. He did not give any reasons for that conclusion. He did, however consider that the appellant's husband would not be able to protect her from threats and reprisals. Indeed, were he to do so he would be the subject of such threats and reprisals himself. The police in Gambia would tend to regard her case as a domestic one which should not warrant their involvement. The judge accepted that there had been a "not inconsiderable delay in ... claiming asylum" (in fact, of more than four years) but accepted the appellant's evidence in its entirety. Judge Heap concluded that the appellant may not have been aware of her ability to make a claim for asylum until seeking advice and this was not fatal to her credibility. The appellant should be afforded humanitarian protection in the UK under paragraph 339C of the Immigration Rules having regard to the substantial risk that she would be put to death because of her refusal to practice FGM. She could not "reasonably be expected to internally relocate as that would not negate the inherent dangers that she faces if she is to return to Gambia".

The Upper Tribunal Proceedings

5. The Upper Tribunal appeal was launched by an application for permission lodged on 3 August 2016. In her grounds the respondent states that the FTT failed to properly consider the matter of internal relocation and sufficiency of protection including whether the appellant could relocate to Banjul, the capital city. In a population of 1.7 million and a densely populated capital it was incredible that "news travels (sufficiently) quickly" to put the appellant at risk. In any event, it is either unduly harsh or not and that the FTT failed to grapple with this question. Furthermore, the FTT failed properly to assess whether the authorities were in fact "unable or unwilling" to protect the appellant. The point made at paragraph 54 of the decision was that it had been the respondent's contention at the hearing that the appellant's expert's report by an anthropologist instructed on the appellant's behalf called Pamela Kea was based on "out of date information". It was wrong for the Immigration Judge to deal with it in this way. The age of the information brought to her being weighed in the balance. It was no answer to state, as the FTT had, that the respondent had not filed any evidence to rebut the evidence for the appellant, which was akin to putting a burden on the respondent that did not exist.

The Hearing

6. At the hearing it was submitted on behalf of the respondent that the Immigration Judge had not dealt sufficiently with the adequacy of protection or internal relocation and that he placed weight on an expert report without properly indicating where the burden of proof lay, if such burden existed. The Judge Heap was required to say why he came to the conclusions he came to and it was clearly an error of law, in the respondent's submission, that the expert report seemed to be based largely on the notion that "news travels fast" within Gambia when the real issue was whether it was reasonably safe for the appellant to go back to Bakau where the appellant's husband lived. It was difficult for the respondent to identify how it would be the case that those from the appellant's home village of Busumbala would identify where the appellant was within a country the size of Gambia. The respondent submitted that in the absence of clear findings, Judge Heap had not reached conclusions that were open to him and, in so far as he is to be taken to have found that there was an inadequacy of state protection for the appellant in Albania, Judge Heap was wrong. The conclusion did not coincide with the country guidance evidence which was summarised in the respondent's refusal letter at paragraphs 26 et seq. In those paragraphs the respondent identifies the extent of a functioning police force and other security services within Gambia. Overall the question was whether the evidence was adequate.

7. Mr Siddique, however indicated that the appellant's credibility had been accepted and that internal relocation and sufficiency of protection were issues which took into account the appellant's credibility. He relied on the case of K [2013] UKUT 00062 and submitted that the appellant was a well-known person in that she resembled her mother and she had accompanied her mother to various ceremonies in different parts of the country. It was accepted that the family had connections with the airport. I was referred to paragraph 50 of the decision. The population of Gambia was not enormous (1.7 million - about the size of Birmingham or similar cities). The First-tier Tribunal was entitled to find that internal relocation was reasonable and had addressed the points in paragraph 56 about the safe return of the appellant to her husband. The FTT indicated at paragraphs 52 and 56 that it was necessary to look at whether there was a safe place for the appellant to go and had made sound findings in that regard. The police in Gambia obviously existed but they did not intervene in domestic situations. The expert had fully covered the points raised by the respondent in the submissions before the Upper Tribunal indeed, had contributed to the country guidance material relied upon. The FTT had made a decision which was open to it and the appellant could not safely return to Gambia. She could not seek the protection of the authorities. I was entitled to treat the evidence presented by the respondent as not sufficiently dealing with the points raised by the appellant in terms of her fear of safe return to her husband and his village.

8. Finally the respondent submitted that it was not simply a case of preferring one lot of evidence over another. There was no burden as such on the respondent; the test was whether it was unduly harsh to expect the appellant to relocate within Gambia before seeking international protection four years after first coming to the UK. In addition, it was incumbent on the FTT to ask whether the state protection was adequate in Gambia. If there was adequate state protection, the asylum and human rights claims fell away altogether. Given that the appellant had not used the resources of the Gambian state which were available to her it could not be said on these facts that there was an inadequacy of state protection.

My findings

9. Having carefully heard the arguments presented by both parties I found the matter finely balanced. Mr Siddique made a forceful case for explaining why the issue of internal relocation/sufficiency of protection was adequately dealt with by the FTT and why it was intimately tied up with the issue of the appellant's credibility. However, having carefully weighed up the arguments of both parties, and with some hesitation, I have nevertheless concluded that the FTT has not properly reasoned the issue of internal relocation/adequacy of protection. I refer to the dismissal of the suggestion that the appellant could avail herself of the protection of her husband/the police/security services in Gambia in paragraph 53 of the decision. It seems to me that before reaching that conclusion the FTT ought to have properly analysed the facts and given clear reasons. It did not give any reason for saying why the appellant should not avail herself of those possible means of protection available to her.

10. Secondly, the issue does not turn on the credibility of the appellant's account, which will be allowed to stand. It turns on the objective analysis of the facts and then answering the question: whether there was an adequacy of state protection in Gambia?

11. Thirdly it was necessary to ask whether there was a safe internal flight alternative available to the appellant or whether it was, in fact, unduly harsh for her to avail herself of that option? The respondent is entitled to pursue those arguments in this case and did so at the FTT and before this Tribunal.

12. I am not satisfied from reading the relevant paragraphs of the decision at paragraphs 50 et seq that the FTT applied the correct test. As the respondent says in her grounds of appeal, the FTT appeared to place a burden on the respondent in this regard. That is not the correct legal position in the sense that the respondent needs only establish the primary facts giving rise to a possible internal flight alternative. As has been referred to, the question for internal relocation is whether it would be unduly harsh for the appellant to internally relocate. It does not answer this question to suggest that the appellant would be recognised on her return to the airport or that Gambia is a country where "news travels fast".

13. I found the reasons given at paragraph 58 for being satisfied that the appellant could not be expected to internally relocate which would "not negate the inherent dangers she faces ... in Gambia" to be excessively vague given the evidence placed before the FTT. In the circumstances, some further reasoning would be needed before the FTT could reach such a conclusion.

14. As far as disposal is concerned, both advocates accepted that if I concluded that the reasoning of the FTT is inadequate, it would be appropriate for me to go on and remake the decision. I will give that decision below.

Discussion

15. The appellant, who came to the UK in 2009, but did not claim asylum until August 2013, nevertheless was found to be credible by the FTT. Two issues, however, have been highlighted before the Upper Tribunal:

(1) Whether it would be unduly harsh for the appellant to be expected to relocate to Bakau or another part of Gambia given that she is an adult who has not herself ever been forced to operate on girls subject to FGM and whether it is good enough to accept the evidence of Dr Kea, an anthropologist expert employed by the appellant, that "news travels quickly" in Gambia?

(2) Whether there is a sufficiency of state protection in Gambia having regard to the fact that the appellant has a husband from whom she is not estranged and that the country has a functioning police force if indeed, her family were to find her in whichever part of Gambia she chooses to settle?

16. The FTT appeared to place the burden on the respondent to show that there was an adequacy of state protection but, with respect, it would be better to describe the position to be that the respondent had to establish the primary facts necessary to place the issue before the FTT. The appellant has the burden of showing an insufficiency of state protection in accordance with the Horvath principle. The appellant could not point to any insufficiency of state protection in Gambia, on the contrary, it had a functioning police force that has attempted to control acts of violence directed towards women. As the respondent observed in her refusal, the appellant had failed to demonstrate that the non-state agents she claims to fear (i.e. her family) would have an influence over her above that of the state.

17. Secondly, the FTT failed to consider whether it would be unduly harsh for the appellant to relocate to a different part of Gambia. She is from a large tribe (42% of the Gambian population). Although there is an extremely high incidence of FGM in the tribe that does not mean that there is no place within Gambia to which she can go and be reasonably safe. In one of those areas there is no reason to expect that she will be required to implement FGM. I have regard to the fact that Bakau is a substantial city in a country of 11,300 square kilometres with a population of 1.735 million. It is simply not credible that the appellant could not settle at some place in Gambia, for example the capital, rather than in her home village. She would be able to access the police service if needed.

18. With respect, it was not primarily an issue of expert evidence but an issue of weighing up the evidence overall and considering whether it would be unduly harsh to expect the appellant to internally relocate before seeking international protection. I have found clearly that there was a safe internal flight alternative to seeking international protection and accordingly, the international obligations which are said to be placed on the respondent do not arise.

19. The appellant now has the option of returning to Gambia voluntarily and reintegrating with her husband, with whom she has been separated since 2012. It is not unreasonable to expect her to do so given the above.

Notice of Decision

19. I set aside the decision of the FTT and substitute the decision of the Upper Tribunal which is:

(1) to dismiss the appellant's appeal against the decision of the respondent to refuse asylum. I also consider that the respondent was entitled to consider the appellant had no right to international humanitarian protection under paragraph 339C of the Immigration Rules. Finally, the appellant's protected human rights under the ECHR were not engaged.

An anonymity direction was made and I maintain the anonymity direction.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD
I make no fee award as no fee was payable.

Signed Date

Deputy Upper Tribunal Judge Hanbury